JOHN A. NORDBERG, District Judge.
Plaintiff Thomas Janusz was arrested on drug charges on December 6, 2001. The charges were later dropped after the state court judge found no probable cause for the arrest. Janusz then filed this case, asserting claims under § 1983 and state law for false arrest, abuse of process, conspiracy, and malicious prosecution. This case went through a long period of discovery in part because Janusz first tried a related civil case in state court against his employer. Now before the Court is defendants' summary judgment motion.
In 1998, Janusz began working as a manager for two Chicago-based funeral homes owned by Keystone Illinois, Inc. ("Keystone"). Keystone purchased one of the homes from Anthony and Daniel Morizzo who signed non-competition agreements as part of the sale. (Plaintiff's Statement of Material Fact ("PF") 1.) While working for Keystone, Janusz claims to have found evidence suggesting the Morizzo brothers were violating their agreements. Based on these observations, Keystone filed a lawsuit against the Morizzo brothers in October 2001. Janusz was to be one of the key witnesses. At the time, Janusz told Keystone's CEO that he was worried the Morizzo brothers would retaliate against him.
On December 6, 2001, Janusz met a woman named Paula Siragusa who he later took to a motel room. Janusz's testimony
As Janusz pulled up in the parking lot, three Chicago police officers—defendants Alan Lucas, Parris George, and Gina Liberti—were driving by. They happened to be in the area because they received an anonymous tip earlier in the evening that a person in a grey Toyota would be in the parking lot to make a narcotics transaction. (Defs. Ex. E at 59.) The officers noticed a black Toyota in the parking lot and saw Janusz get out of this car and put duffel bags on top of it and then observed him pacing back and forth as if he were waiting for something. (Id. at 58-69.) The officers parked across the intersection to observe him. At some point, they decided to approach and drove over to the lot. Sometime during this process, all three officers allegedly noticed that Janusz's license plate was expired. (DF 12.) The officers talked to both Janusz and Siragusa. According to Lucas, Siragusa described how she and Janusz spent the better part of the afternoon driving from one hotel room to another while Janusz ran up to the rooms with a duffel bag for a short period and returned to the car. Siragusa also allegedly told Lucas that Janusz smoked cocaine and had a plastic cup with cocaine in the front seat of the car. (Id. at 89-90.) The officers found $4,400 in cash inside the duffel bag. Janusz was placed under arrest. (DF 4.) Siragusa was not arrested, nor was a statement taken from her, nor did any of the three officers write down her address or phone number. (PF 14.) Instead, she was given $10 so she could get a ride home. In the later police report, the officers did not mention Siragusa's name nor identify her in any other way than referring to her as a "female passenger." (PF 25.) At the time, Siragusa was an admitted heroin addict who had been arrested several times. (Defs. Ex. F at 7, 38.) She also was doing drugs in the hotel that afternoon.
Janusz described the encounter differently. He testified that Lucas approached and said "I think you're a drug dealer" and then asked for the key to the motel room and asked where the gym bag was. (PF 12-13.) Because Lucas could not have known about these facts (the bag was inside the car, according to Janusz), Lucas must have learned this information from Siragusa. Janusz believes she was contacting Lucas during the afternoon with a pager to coordinate the arrest. When officers asked why he had so much cash in the bag, Janusz explained that cash payments were common in the funeral business. (PF 15.) Janusz claims that while sitting in the police car, he saw Lucas reach into his vest, remove a small plastic bag containing a white pebble-sized object which he flicked into a cup in the front seat of Janusz's car. (PF 16.) The officers did not issue Janusz a ticket for expired plates. (Id.)
On the way to the apartment above the funeral home, Lucas allegedly turned around and said to Janusz something along the lines of: "Now, we wouldn't want this young man to end up in Cook County tonight with a bunch of spooky dos now, boys, would we?" (Pl. Ex. 2 at 417.) Janusz also claims defendant George admitted Siragusa had set him up. (PF 23.)
In their search of his apartment, the officers allegedly found crystal meth, cocaine, and illegal anabolic steroids. They also inventoried $17,810 in cash. (DF 30.) Janusz claims the officers stole $20,000 in cash and a $1,500 watch. (PF 24.)
Shortly after Janusz was arrested, a police officer named Grizzoffi made copies of Janusz's confidential police records. (PF 30.) Grizzoffi had previously worked part-time for Keystone and knew the Morizzo brothers. (PF 29.) Anthony Morizzo received these reports in the mail five days after the arrest. (PF 30.) Allegedly relying on these reports, the Morizzo brothers sought to settle the civil lawsuit against Keystone by arguing that the drug arrest made Janusz a tainted witness. (PF 31.) Believing this to be true, Keystone settled the lawsuit. It also fired Janusz in January 2002.
In May 2002, Janusz moved to quash the arrest. A hearing was held in October with Janusz and Lucas testifying as the key witnesses. At the hearing, Janusz's counsel pointed out that Anthony Morizzo was in the courtroom and that he was involved in litigation with Janusz's employer at the time of the arrest. (Def. Reply Ex. 2 at 8.) One issue that the prosecutor focused on heavily was whether Janusz's license plates were expired. (Id. at 5, 12. 19, 22-25.) Janusz testified several times that they were not. (See id. at 5 ("Q. Were the license plates current? A. Yes, they were."). However, as demonstrated by the records of the Illinois Motor Vehicle Records Division, which were late submitted as evidence in this case (Defs. Ex. I), Janusz' plates were expired on December 6th. (DF 10.) He purchased new plates five days after the arrest. (DF 11.)
In his closing argument, the prosecutor framed the issue as a credibility battle between Janusz and Lucas, arguing that Janusz was a liar telling an absurd story. (Defs. Reply Ex. 2 at 66-67.) Judge Dernbach granted the motion to quash finding Lucas' explanation of what happened to be unusual. Here is the key part of his ruling:
(Id. at 75-76.) Immediately after Judge Dernbach granted the motion, the prosecution in open court dropped the charges against Janusz.
It is worth pausing here to note that each side has accused the other side's main witness of lying under oath. First, as to Janusz, he stated clearly at the motion to quash hearing that his license plates were current on the night of the arrest. Yet, the evidence submitted in this case shows both that his plates were expired and that he got new ones five days after the arrest. Although Judge Dernbach did not find this fact significant to his ruling, he did take it as true in his analysis that the plates were in fact expired. This evidence thus suggests Janusz lied under oath on this potentially significant issue relating to probable cause. In addition, as noted above, Janusz stated in the motion to quash hearing that he initially met Siragusa at a Bally's Health Club whereas he testified in his deposition in this case that he met her at the gas station parking lot where she allegedly was dropped off by defendant George, a fact which Janusz now relies on as a key piece of evidence in his conspiracy claim. Again, this evidence suggests Janusz lied under oath. Second, as for defendant Lucas, he made several statements at the motion to quash hearing that gave the strong impression that the substance found in the cup in the car was in fact cocaine. See D. Reply Ex. 2 at 40 ("I walked back to the truck, retrieved the cocaine."); at 63 ("I recovered the cocaine in the vehicle, yes."). However, based on evidence submitted in this case, we now know that the Lab Report indicated this substance was not cocaine. (See Pl. Ex. 27), a point Lucas confirmed in his deposition in this case (Pl. Ex. 6 at 179 ("The suspect cocaine that I found in the car was negative. [] I made a mistake."). The Lab report was sent to Lucas on or around December 21, 2001, well before the motion to quash hearing in October 2002. More significantly, Lucas testified to the grand jury in this case five days after receiving the Lab report and stated the following:
(Pl. Ex. 15 at 8.) Lucas' affirmative representation that substance testified positive for cocaine, combined with his later deposition testimony that it did not, strongly suggest he lied to the grand jury and arguably to Judge Dernbach.
After the charges were dropped at the motion to quash hearing, Janusz filed two lawsuits. First, in state court he sued Keystone and two employees for breach of
Defendants' motion does not seek to avoid a trial altogether, but instead seeks to chip away certain claims against certain defendants and to cut out a potentially significant portion of plaintiff's damages claims. There are eight arguments altogether. Defendants concede that the core issues about what happened—whether Lucas framed Janusz on drug charges and whether he coerced him into signing a consent to search form—are fact disputes which must be resolved by a jury. See Defs. Mem. at 6 ("Without a doubt, there are factual disputes regarding what transpired between Plaintiff and Officers Lucas, George and Liberti leading to his arrest for possession of narcotics at the gas station.").
Although defendants concede that plaintiff has enough evidence to show that Lucas planted drugs (among other things), it is still worthwhile to summarize plaintiff's argument on this key point because it anchors many of his arguments here. Janusz believes the four police officers were in cahoots with the Morizzo brothers to taint him as a witness in the Keystone litigation and used Siragusa to set him up. His case relies on what he believes is the suspicious timing and handling of his arrest. How did the officers know he would be at this particular gas station at this particular time, given that he had been at a hotel for four hours before with Siragusa? Who could have tipped them off other than her? And why did officers focus single-mindedly on Janusz and virtually ignore Siragusa? The anonymous tipster did not identify the person as a male or female; Siragusa had been using heroin earlier in the day; she had been arrested for drugs several times; she had equal access to the drugs. Despite these facts, police let her go, did not even write down her name or phone number, did not run a background check on her which they could have done from their car, and later did not include her name in the police report. Moreover, officers showed no interest in waiting to see if a drug transaction took place and approached Janusz while he was just standing about, thereby failing to capture the other participant in the deal. They also showed no interest in following up on leads about the possible drug deals during the day which Siragusa supposedly described. For example, Lucas claims Siragusa said that Janusz and another male were together in the hotel room at one point, but Lucas never sought to follow up on this or other leads. Judge Dernbach, who heard Lucas testify directly, noted many of the same concerns. The jury in the civil trial obviously believed some of Janusz's testimony as it awarded him over $3 million in damages. (To be fair, we do not know much about the specific evidence submitted in that case, although defendants argue below that the proceeding covered much of the same basic ground as this case.) Also, Siragusa's testimony conflicts in several places with Lucas' testimony, and she testified that she found it odd how the police suddenly pulled up on them in the gas station parking lot. (Defs. Ex. F at 41.) The officers generally try to explain away the anomalies by essentially admitting that they did not follow the
In addition, Janusz has some direct evidence. He claims, for example, he saw Lucas put the (fake) drugs into the coffee cup. He experienced Lucas slamming him down in the police station and heard Lucas and George threaten him with gang rape in prison.
To be sure, Janusz's case has a number of potential weaknesses. As noted above, his credibility may be attacked given that it appears he lied twice about key points in the motion to quash hearing. A jury may find his willingness to change his story raises doubt about all of his testimony. Also, as defendants point out, neither the Morizzo brothers nor Grizzoffi nor Siragusa admitted ever knowing these officers. Although Siragusa's testimony conflicts in places with Lucas' testimony, she at the same time denied having a pager or in any way participating in a conspiracy. In the end, because we must under Rule 56 give reasonable inferences to plaintiff's version of events, we will assume for purposes of this ruling that these police officers attempted to frame plaintiff by planting fake evidence, by lying under oath, and by using threats of violence.
One preliminary issue. After briefing on summary judgment, plaintiff moved for leave to file a fourth amended complaint seeking to add a claim (Count XII) that defendants Lucas and George unlawfully searched his vehicle. These allegations were already in the third amended complaint, but plaintiff did not include them as a separate count. Defendants addressed the implied claim in their opening summary judgment brief, and have not sought to oppose the current motion. The motion is therefore granted. We now address defendants' eight arguments (using the number-labeling system in plaintiff's brief).
Plaintiff raises three arguments in response. He first argues that driving on
To begin with, Judge Dernbach, who had the benefit of listening to live testimony, found that the expired license plate was an "afterthought," suggesting he did not completely believe Lucas. Related to this point, plaintiff's case rests on the larger conspiracy allegation that these officers have lied and are continuing to lie to try to cover up their wrongdoing. A jury therefore could reasonably disbelieve the officers' claim that they saw the plates initially and believe instead that they are now lying to cover up their wrongdoing. Finally, there is circumstantial evidence (the plate was dirty, the officers were 200 feet away according to plaintiff, and it was dark outside) suggesting they may not have seen the plate initially. We recognize that the test requires us to assess what a reasonable officer might have seen, but this inquiry is entangled with the assessment of the credibility of the officers because they are the only source we have as to what a reasonable officer would have known. In short, a jury must determine the factual issue about what the officers knew and when they knew it.
This conclusion finds support from the Seventh Circuit's decision in Carmichael v. Village of Palatine, Illinois, 605 F.3d 451 (7th Cir.2010), a factually similar case involving a drug arrest where officers claimed probable cause existed because of a missing front license plate. Reversing summary judgment, the Seventh Circuit held that the district court "misapprehended" the factual record. Id. at 458. The officers in Carmichael admitted they did not know about the missing license plate until after the "relevant Fourth Amendment decision [had] been made." Id. (noting that the objective test is "not meant to give an arresting officer the added benefit of any facts that come to light after a relevant Fourth Amendment decision has been made"). Defendants here argue that the admission by the officers in Carmichael distinguishes that case because here there is no such admission. While true, a jury still could disbelieve the officers for the reasons already stated above and, if so, this case would then be on the same footing as Carmichael.
Defendants next cite to the intra-corporate conspiracy doctrine, which generally states that a conspiracy cannot exist solely between members of the same entity, and argue that the only conspirators named as defendants are all in the Chicago police department. In response, plaintiff asserts that the conspiracy involved others outside the department, including Siragusa, the Morizzo brothers, and Grizzoffi, and argues that there is no legal requirement that he name them all as defendants. See Pl. Resp. at 20 (citing to cases including Dexia Credit Local v. Rogan, 604 F.Supp.2d 1180, 1185-86 (N.D.Ill.2009)) ("There is no requirement that a plaintiff sue every member of an alleged conspiracy; the plaintiff can choose which members to bring to court."). In their reply, defendants offer no response. This argument is therefore waived.
Finally, defendants devote a substantial amount of their briefs arguing the facts and trying to prove that the conspiracy evidence is speculative, existing only "within Plaintiff's own mind." (Defs. Mem. at 12.) Defendants emphasize that the officers and the alleged outside conspirators all testified that the two groups did not know each other. They point out how Janusz changed his testimony from the motion to quash hearing, where he
In their reply brief, defendants do not contest the general assertion that delaying the hearing would be sufficient in principle to satisfy this second requirement. Instead, they argue no evidence exists that he didn't show up. See Defs. Reply at 18 ("[plaintiff] offers no evidence that he or the prosecutors subpoenaed the officers and they refused to come. Police Officers do not prosecute cases, they come to court when summoned by one of the parties.") We find these arguments again rest on factual assertions which the jury should assess at trial.
Defendants also argue that the malicious prosecution claim should be dismissed as to defendants Liberti and Mugavero-Lucas because there is no evidence they commenced or continued the prosecution (the first element of the claim) given that they never testified or spoke with a State's Attorney about the prosecution. (Defs. Mem. at 17.) Plaintiff argues in response that they were involved in the overall conspiracy and that Liberti was present at the Motion to Quash hearing. But plaintiff has not offered any case suggesting that these actions would be sufficient to satisfy this first requirement of a malicious prosecution claim. (Pl. Resp. at 26.) Therefore, we grant judgment to these two defendants on the malicious prosecution claim.
Plaintiff argues that there are in fact two separate and divisible injuries—the emotional harm from the December 6th arrest and threat of gang rape and then the later and different emotional harm when plaintiff was fired in January 2002 and defamed by Keystone. Because there is not an indivisible injury, he argues neither collateral estoppel nor the single recovery rule apply. Plaintiff also argues that, even if certain of the injuries are identical, defendants have the burden of proving what portion of the jury award in the Keystone case is attributable to the claims for which they are liable. (Pl. Resp. at 29, citing Thornton v. Garcini, 382 Ill.App.3d 813, 321 Ill.Dec. 284, 888 N.E.2d 1217 (2008).) Plaintiff argues defendants cannot meet this burden because the Keystone jury "did not explain what injuries they were compensating Janusz for when they awarded him compensatory damages for the defamation and intentional infliction of emotional distress." (Id.)
In their reply, defendants emphasize that they are not arguing that plaintiff is entitled to no damages in this case, "but rather than he is only entitled to those damages for which he has already been compensated." (Def. Reply at 22.) But defendants go on and argue that they are not seeking a set-off but instead are seeking the "complete elimination" of claims for emotional damages. (Id.) Defendants also complain that plaintiff has failed to provide a specific explanation of what damages were not covered by the Keystone case.
After reviewing both side's arguments, which are tucked at the end of long briefs dealing with numerous other issues, this Court is not prepared at this point to grant summary judgment to defendants and thereby completely eliminate any claims for emotional distress or wages. Neither side has provided a full discussion of the law or the facts, nor has either side provided a satisfactory method for figuring out a way to apportion the allegedly separate damage claims. Still, we note that defendants have raised a number of legitimate questions. It is clear that plaintiff cannot recover twice for the same injuries.